Moss v. Metropolitan Nat. Bank of Houston

• Court: Texas Civil Court of Appeals
• Writing for the Court: PEDEN
• Citation: Moss v. Metropolitan Nat. Bank of Houston, 533 S.W.2d 397 (Tex. Ct. App. 1976)
• Decision Date: 22 January 1976
• Docket Number: No. 16616,16616
• Parties: Phil P. MOSS et al., Appellants, v. METROPOLITAN NATIONAL BANK OF HOUSTON, Texas, Appellee. (1st Dist.)

Page 397

533 S.W.2d 397

Phil P. MOSS et al., Appellants, v. METROPOLITAN NATIONAL BANK OF HOUSTON, Texas, Appellee.

No. 16616.

Court of Civil Appeals of Texas Houston (1st Dist.).

Jan. 22, 1976.

Rehearing Denied Feb. 19, 1976.

Sheinfeld, Maley & Kay, Larry L. Evans, Houston, for appellants.

Hutcheson & Grundy, Thomas T. Hutcheson, Houston, for appellee.

PEDEN, Justice.

This is an appeal from the granting of a summary judgment in favor of Metropolitan National Bank on its suit on two promissory notes. Defendants Phil P. Moss and Arthur Moss had filed a defensive pleading alleging usury.

We review the bank's petition. It states that on or about July 26, 1974, Phil P. Moss executed and delivered to appellee a promissory note for $30,000 bearing ten per cent interest. It was due on demand or, if no demand was made, on or before October 19, 1975, and provided that it was to be reduced every ninety days by payment of $6,000 plus accrued interest. On December 2, 1974, although he was in default, he made some payments. On February 10, 1975, the bank made a written demand for payment of the principal and interest due, but Phil Moss failed and refused to pay, and as of March 26, 1975, the balance due on this note was $22,100.31. The bank's petition also alleged that on or about December 12, 1974, Phil P. Moss and Arthur Moss executed and delivered to the bank a promissory note for $22,500.00 bearing interest at ten per cent. This note was due on demand or, if no demand was made, on or before January 26, 1975. On February 10, 1975, the bank also made a written demand for payment of the principal and interest due on this note, but the appellants failed and refused to pay it.

The Mosses initially answered the bank's suit by a general denial. The bank filed a motion for summary judgment with a supporting affidavit sworn to by Mr. Joseph S. Bracewell, executive vice president of Metropolitan National Bank. Although his affidavit contains mixed statements of facts and conclusions of law, there are enough factual statements to support the motion for summary judgment .

Appellants responded by filing a sworn answer setting up a counterclaim for usury, and Phil P. Moss filed this affidavit in opposition to the bank's motion for summary judgment:

'Metropolitan National Bank, Affiant, and Arthur Moss entered into a loan agreement in 1974 whereby Affiant and Arthur Moss executed promissory notes payable to Metropolitan National Bank, with interest stated on the face of the promissory notes of ten (10%) percent per annum. In addition to the stated rate of interest of ten (10%) percent per annum, a further consideration and charge for the loans by Metropolitan National Bank was the agreement by Affiant and Arthur Moss to place a compensating balance in the amount of Fifty Thousand and No/100 ($50,000.00) in Metropolitan National Bank . Metropolitan National Bank required as a condition to making the loans Affiant's and Arthur Moss' agreement to place in Metropolian National Bank the $50,000.00 compensating balance.

'Due to the inability of Affiant and Arthur Moss to provide a $50,000.00 compensating balance, Affiant and Arthur Moss paid three (3) other parties One Thousand Two Hundred Fifty and No/100 ($1,250.00) Dollars to make a $50,000.00 deposit in Metropolitan National Bank. This compensating balance was purchased by Affiant and Arthur Moss and a $50,000.00 Certificate of Deposit was placed in Metropolitan National Bank on December 18, 1974, for a period of six (6) months. The purchase of the compensating balance and the depositing thereof in Metropolitan National Bank was pursuant to the requirement and condition set by Metropolitan National Bank as a part of the loan agreement between Metropolitan National Bank and Affiant and Arthur Moss.'

The appellants' first three points of error are that the trial court erred 1) in granting a summary judgment to the bank on the whole case in that the summary judgment proof raised material issues of fact and the bank failed to negate the existence of material fact issues as to the appellants' counterclaim, 2) in finding...